Keegan v Police
[2020] NZHC 489
•12 March 2020
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2020-441-000002
[2020] NZHC 489
BETWEEN AARON JON KEEGAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 March 2020 Counsel:
E J Forster for the Appellant
M M Mitchell for the Respondent
Judgment:
12 March 2020
JUDGMENT OF DOOGUE J
Introduction
[1] This is an application appealing the sentence imposed on the appellant, Mr Keegan, on 16 January 2020 in the Hastings District Court by Judge Couch. The Judge sentenced Mr Keegan to two years, five months’ imprisonment.1
[2] This was in relation to seven charges against the same victim, a woman with whom Mr Keegan had been in a relationship with for several years. There were four breaches of a protection order,2 two charges of assault with a weapon,3 and one charge of dishonestly using a document.4
1 Police v Keegan [2020] NZDC 815.
2 Domestic Violence Act 1995, ss 19(2)(c), 49(1)(b) and 49(3); maximum penalty of three years’
imprisonment.
3 Crimes Act 1961, s 202C; maximum penalty of five years’ imprisonment.
4 Crimes Act, s 228(1)(a); maximum penalty of seven years’ imprisonment.
KEEGAN v NEW ZEALAND POLICE [2020] NZHC 489 [12 March 2020]
Factual overview
[3] Following several family harm incidents, a protection order was made in November 2018 protecting the victim from Mr Keegan. On the morning of 31 May 2019, Mr Keegan went to the victim’s home uninvited. He was told to leave, but he refused to do so. Mr Keegan managed to get inside the house nonetheless, and an argument developed. Mr Keegan was told again several times to leave but he refused to go. This was the first breach of the protection order.
[4] Mr Keegan picked up a crowbar and struck a coffee table and then followed the victim around the house, brandishing the crowbar. He smashed a bedroom light with it. He swung it at the victim’s head and struck her on the arm as she raised it to protect herself. Mr Keegan only left the premises when a third party called the police. This was the first assault with a weapon.
[5] On 13 June 2019 the victim let Mr Keegan borrow her car for a short trip. Her bank card was in the car and he used it without permission to obtain goods or money to the value of $170. This led to the dishonestly using a document charge.
[6] Mr Keegan returned the vehicle much later than arranged and an argument started. Again, he was told many times to leave but refused. This led the victim to going elsewhere overnight to escape from Mr Keegan. This was the second breach of the protection order.
[7] When the victim returned home the following day Mr Keegan was asleep in her bed. The victim started to get her belongings together in order to leave again. She told Mr Keegan her mother was expected to arrive any time soon and that the police would be called. Mr Keegan then threatened to harm the mother and made as if to punch the victim. This led to two more breaches of the protection order.
[8] After that, Mr Keegan went outside where he had an argument with a friend of the victim. The victim came outside to see what was going on and found Mr Keegan with a small axe in his hand. On seeing the victim, Mr Keegan advanced towards her with the axe raised above his head while yelling abuse at her. This was the second assault with a weapon.
District Court decision
[9] The Judge took the charges of assault with a weapon as the lead charges. He held that the gravity of the offending on both occasions was serious, not only for the physical harm that was done to the victim but also for the psychological harm. He referred to the fact that in both cases the weapons used were capable of causing serious injury or death. For these two assaults, he took a starting point of 18 months’ imprisonment.
[10] The Judge considered that the offending was “greatly aggravated by the breaches of protection order”. The aggravation consisted of having no regard for the victim’s rights, or for the court order. Each breach involved unlawful presence in the victim’s home, as Mr Keegan refused to leave when asked to do so.
[11] The Judge referred to the fact that it was apparent from the victim impact statement that the effects of Mr Keegan’s actions on the victim had been profound. He applied an uplift of 12 months for the breaches of protection order and for the dishonestly using a document charge.
[12] The Judge also found that personal aggravating factors were relevant. Those factors included that all of the offending occurred while Mr Keegan was subject to sentences of community work and supervision imposed in November 2018 for violent offending against the same victim. For that he applied an uplift of three months.
[13] He then referred to Mr Keegan’s criminal history, citing six previous convictions for assault, most recently in 2018 where there were convictions for injuring with intent to injure and threatening to kill the same victim. He applied an uplift of a further three months for that.
[14] He then turned to consider any mitigating factors. He referred to the presentence report which recorded that Mr Keegan “took responsibility for some of the events”. The Judge, however, said that it did not appear that Mr Keegan had any real insight into the seriousness of his offending or that he had any remorse. The only mitigating factor the Judge found was the guilty pleas. However, these were entered
on the day of trial. As a result, he made some additional allowance in respect of those and reduced the sentence by seven months.
[15] For the assault with a weapon charges the Judge imposed an end sentence of two years and five months’ imprisonment, and on each of the other charges he imposed a sentence of nine months’ imprisonment. All sentences were to be served concurrently.
Approach to appeal
[16] This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and therefore must only be allowed if the Court is satisfied that there has been (for any reason) an intrinsic error in the sentence imposed, and that a different sentence should be imposed.5
[17] The sentence must be either manifestly excessive or inappropriate if the appellate court is to interfere with the discretion.6
[18] The focus is on the final sentence rather than the exact process by which it was reached, and whether the sentence was in the available range.7 As articulated in R v Peters:8
As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be
examined in terms of the sentence actually passed, rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but it is in the result
ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component.
[19]The appeal raises the following questions:
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
6 Affleck v Police [2017] NZHC 3220 at [9].
7 Ripia v R [2011] NZCA 101 at [15].
8 R v Peters CA12/03, 14 May 2003 at [13].
(a)Was the starting point of 18 months’ imprisonment for the lead charge manifestly excessive?
(b)Was the uplift for the remaining charges excessive?
(c)Was the uplift for previous convictions excessive?
(d)Did all of the above factors result in an end sentence that was manifestly excessive?
Was the starting point for the lead charge manifestly excessive?
Submissions
[20] Mr Forster for Mr Keegan submitted that the Judge made an error in his approach to sentencing by not applying Nuku v R as a guideline judgment,9 as required by Tamihana v R;10 and the offending should have been placed at the low end of Nuku band two. In summary, he submitted that the starting point should have been lower. He also submitted the Judge erred by not setting a global starting point.
[21] Ms Mitchell for the respondent submitted there was no obligation for the Judge to apply Nuku, and even if he did, the starting point of 18 months would have been available.
Analysis
[22] Nuku is a Court of Appeal guideline judgment for offences of wounding and injuring with intent under ss 188(2), 189(2), and 191(2) of the Crimes Act 1961, which establishes three sentencing bands:11
(a)Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.
9 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
10 Tamihana v R [2015] NZCA 169.
11 Nuku v R, above n 9, at [38].
(b)Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at
[31] of Taueki are present.
(c)Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.
[23] In Tamihana the Court of Appeal confirmed that Nuku can be helpful in relation to the charge of assault with intent to injure under s 193 of the Crimes Act 1961, as it has the same mental element, while noting that Nuku focuses on different offences, with higher maximum sentences.12
[24] In Hurinui v R the Court of Appeal applied the Nuku methodology to a charge of assault with a weapon, noting that it carries the same maximum penalty as injuring with intent under s 189(2).13
[25] In Reedy v Police, the High Court also applied Nuku to a charge of assault with a weapon, stating that although it “does not, on its face, cover sentences for assault with a weapon”, it has been applied in relation to this charge on a number of occasions, noting it has the same maximum penalty as s 189(2).14 The defendant faced various charges, and the lead charge was assault with a weapon. Following an incident of theft, the defendant brandished a meat cleaver and advanced slowly on the victims. There were two aggravating factors present: the offence was in facilitation of another crime; and the type of weapon used.15 The Court placed it at the low end of band two, and imposed a starting point of 13 months’ imprisonment.16
[26] Given the above discussion, while it was open to the Judge to apply Nuku, he was not obliged to, and therefore there was no error in his approach. If Nuku was
12 Tamihana v R, above n 10, at [16].
13 Hurinui v R [2014] NZCA 290 at [26]-[27].
14 Reedy v Police [2019] NZHC 2435 at [14].
15 At [17]-[18].
16 At [26].
applied, the Judge’s starting point of 18 months would be in the middle of band two, which in my view was appropriate.
[27] Several of the aggravating factors in R v Taueki were present in the offending, justifying its placement in band two of Nuku.17 Although there are more than three aggravating factors, which would place it in band three, I do not consider the combination of them is serious enough to justify this. Although there was no extreme physical violence, I note both incidents were prolonged, involving Mr Keegan refusing to leave the victim’s home. Although the victim did not suffer serious physical injuries, the victim impact statement records that she has suffered serious psychological harm as a result of the offending. Both incidents involved the use of serious weapons (a crowbar and a small axe). The first incident involved an attempted attack to the head (Mr Keegan swung a crowbar at the victim’s head, and struck her arm as she held it up to protect herself). The first incident involved a home invasion, as Mr Keegan went to the victim’s address uninvited, gained access to the house by manipulating a bolt on a door, and refused to leave. The second incident occurred outside at the victim’s address, after Mr Keegan had entered the locked house after refusing to leave for an extended period, forcing the victim to leave her home in order to get away. Given the number of aggravating factors, the present case is more serious than Reedy, and the starting point of 18 months’ imprisonment was justified.
[28] Although the option of setting a global starting point for all of the charges was available to the Judge, it was also open to him to set the starting point with reference to the lead charges and then apply an uplift for the remaining charges, as he did. There was no error in the approach taken by the Judge.
Was the uplift for the remaining charges excessive?
Submissions
[29] Mr Forster submitted the uplift of 12 months for breaches of the protection order was excessive.
17 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 at [31].
[30] Ms Mitchell submitted that the serious nature of the breaches of the protection order, together with the use of the victim’s eftpos card, justified the uplift of 12 months.
Analysis
[31] Mr Forster submitted the case of Wratt v Police showed an uplift of 12 months was not justified.18 In Wratt, the defendant breached a protection order twice, through controlling and manipulative behaviour (including verbally abusing the victim, interrogating her about her personal life, monitoring her social media, and sending her over 100 text messages within approximately one month). The High Court upheld the District Court’s starting point of 12 months’ imprisonment, noting the offending was more serious than cases where starting points of between 12 and 15 months’ imprisonment were adopted.19
[32] Ms Mitchell referred me to Cull J’s recent review of a number of sentencing decisions for breach of protection order.20 I find the cases of Crean v Police,21 and Robinson v Police,22 to be more useful than Wratt when assessing the current offending, given their similarity to the facts of the current offending.
[33] Crean involved two breaches of a protection order.23 In the first incident, the defendant was at the victim’s home, and they were consuming alcohol together. They began to argue, the defendant refused to leave when asked repeatedly, and the victim left the house to call the police. In the second incident, the defendant was again consuming alcohol at the victim’s home, and refused to leave when asked. The victim again left the house, with the defendant pursuing her. She locked herself in a public toilet and phoned the police. The defendant had two recent convictions for breaching protection orders, which the Court held was “integral to the assessment of the gravity
18 Wratt v Police [2018] NZHC 2477.
19 At [29].
20 Thompson v Police [2020] NZHC 20 at [20].
21 Crean v Police [2015] NZHC 3203.
22 Robinson v Police [2019] NZHC 1412.
23 Crean v Police, above n 21.
of the index offending.”24 The Court held a starting point of 15 months’ imprisonment was appropriate.25
[34] Robinson involved one charge of breaching a protection order.26 The defendant was at the victim’s home when he began verbally abusing a friend of the victim. The victim asked him to leave, but he refused. The victim called the police. The District Court adopted a starting point of six months’ imprisonment, uplifted by a further six months for previous breaches of the protection order and the continued pattern of offending.27 The High Court considered this “effective twelve-month starting point” orthodox, and noted a starting point of 15 months was open to the Judge.28
[35] The present case is similar to both of these cases, as Mr Keegan was present at the victim’s address and refused to leave. It is more serious than Crean, as Mr Keegan was not originally invited into the victim’s address, and forced his way into the house. It is also more serious than Robinson, as it involves two breaches. Although I note Mr Keegan does not have any prior convictions for breach of a protection order, I consider the present case overall is more serious than both cases, especially given the impact it appears to have had on the victim. The home invasion element of the offending is especially serious, as Mr Keegan’s actions have caused the loss of the victim’s sense of security in her own home, a place she is entitled to feel safe. A standalone starting point of at least 15 months’ imprisonment for the breaches of the protection order would therefore have been available.
[36] The seriousness of the breaches of the protection order, coupled with the dishonestly using a document charge, mean the uplift of 12 months’ imprisonment was available to the Judge.
24 At [16].
25 At [19].
26 Robinson v Police, above n 22.
27 At [5].
28 At [22].
Was the uplift for previous convictions excessive?
Submissions
[37]Mr Forster submitted the uplifts for previous convictions, and the fact the offending occurred while Mr Keegan was subject to a sentence, were excessive, and risked “double-counting”.
[38]Ms Mitchell submitted there was no error by the Judge in imposing the uplifts.
Analysis
[39]When sentencing an offender, the Court is required by the Sentencing Act 2002 to take into account whether the offence was committed while the offender was on bail or subject to a sentence,29 as well as the offender’s previous convictions.30 The Court of Appeal has held that imposing an uplift under s 9(1)(c) does not amount to double-counting, as it reflects the fact that such offending “displays a disregard for Court processes.”31
[40]The offending occurred while Mr Keegan was subject to a sentence of community work and supervision, imposed on 1 November 2018, for violent offending against the victim (injuring with intent to injure or reckless disregard, and threatening to kill or cause grievous bodily harm). In addition to those convictions, Mr Keegan has various convictions for violent offending prior to the relationship. He also has a conviction for dishonest use of a bank card. An uplift of three months for each of these factors, totalling six months, was appropriate.
Was the end sentence manifestly excessive?
[41]In light of the foregoing discussion, the end sentence of two years, five months’ imprisonment is not manifestly excessive.
29 Sentencing Act 2002, s 9(1)(c).
30 Sentencing Act 2002, s 9(1)(j).
31 Clunie v R [2013] NZCA 110 at [22].
Result
[42]The appeal is dismissed.
Doogue J
Solicitors:
Crown Solicitor, Napier
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